HSBC Mortg. Servs., Inc. v. Royal

• Court: New York Supreme Court — Appellate Division
• Citation: HSBC Mortg. Servs., Inc. v. Royal, 2016 NY Slip Op 5973, 142 A.D.3d 952, 37 N.Y.S.3d 321 (N.Y. App. Div. 2016)
• Decision Date: 14 September 2016
• Parties: HSBC MORTGAGE SERVICES, INC., respondent, v. Phillippa ROYAL, appellant, et al., defendants.

142 A.D.3d 952

37 N.Y.S.3d 321

2016 N.Y. Slip Op. 05973

HSBC MORTGAGE SERVICES, INC., respondent,

v.Phillippa ROYAL, appellant, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 14, 2016.

Biolsi Law Group P.C., New York, N.Y. (Steven Alexander Biolsi of counsel), for appellant.

Fein, Such & Crane, LLP (D.J. & J.A. Cirando, Syracuse, N.Y. [John A. Cirando, Bradley E. Keem, and Elizabeth deV. Moeller], of counsel), for respondent.

RUTH C. BALKIN, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, and FRANCESCA E. CONNOLLY, JJ.

In an action to foreclose a mortgage, the defendant Phillippa Royal appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Kings County (R. Garson, J.), dated December 17, 2014, as granted the plaintiff's motion, inter alia, for summary judgment on the complaint, and (2) from an order of the same court dated January 5, 2015, which granted the plaintiff's motion for summary judgment on the complaint, to strike her answer, to amend the caption, and to appoint a referee to compute the amount due to the plaintiff.

ORDERED that the appeal from the order dated December 17, 2014, is dismissed, as the portion of the order appealed from was superseded by the order dated January 5, 2015; and it is further,

ORDERED that the order dated January 5, 2015, is reversed, on the law, the plaintiff's motion for summary judgment on the complaint, to strike the answer of the defendant Phillippa Royal, to amend the caption, and to appoint a referee to compute the amount due to the plaintiff is denied, and so much of the order dated December 17, 2014, as granted the plaintiff's motion, inter alia, for summary judgment is vacated; and it is further,

ORDERED that one bill of costs is awarded to the appellant.

In April 2010, the plaintiff commenced this mortgage foreclosure action against, among others, the appellant, alleging that the appellant had defaulted on the subject loan. The plaintiff subsequently moved for summary judgment on the complaint, to strike the appellant's answer, to amend the caption, and to appoint a referee to compute the amount due. In support of its motion, the plaintiff submitted the affidavit of Adam Roesner, the vice president of foreclosure for Caliber Home Loans, Inc., the loan servicer for the plaintiff's successor in interest, U.S. Bank Trust, N.A., as Trustee for LSF8 Master Participation Trust (hereinafter U.S. Bank). Roesner averred, inter alia, that his knowledge of the relevant facts was based on his “examination of the financial books and business records made in the ordinary course of business maintained by or on behalf of the successor in interest to the Plaintiff,” and that he was “familiar with the record keeping systems that [the] successor in interest to the Plaintiff and/or its loan servicer use[d] to record and create information related to the residential mortgage loans that it services.” The Supreme Court granted the plaintiff's motion.

In moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie entitlement to judgment as a matter of law through the production of the mortgage, the note, and evidence of the defendant's default in payment (see HSBC Bank USA v. Espinal, 137 A.D.3d 1079, 1079, 28 N.Y.S.3d 107 ; Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ). On its motion for summary judgment, a plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law (see U.S. Bank N.A....